No. 85-450 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

IN RE THE MARFIAGE OF 

TERI DiPASQUALE , 

Petitioner and Respondent, 

and 

HENRY GETZ, 

Respondent and Appell-ant. 

APPEAL FROM: District Court of the Fourth Judicial- District, 

In and for the County of Missoula, 

The Honorable H.L. McChesney, Judge pro tem. 

COUbTSEL OF RECORD: 

For Appellant: 

J. Robert Riley, Missoula, Montana 

Christopher Daly, Missoula, Montana 

For Respondent: 

Nancy LaFlamme, Montana Legal Services, Halispell, 

Montana 

Measure, Ogle & Ellingson; Darrell S. Worm, Kalispell, 

Montana 

Submitted on Briefs: Jan. 23, 1986 

Decided: April 4, 1986 

Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Appellant, Henry Getz, appeals from the order of the 

District Court, Fourth Judicial District, County of Missoula, 

dated June 6, 1985, granting custody of the parties' two 

minor children, namely, Jeremy Albert Getz and Amy Louise 

Getz to respondent, Teri Di Pasquale, and ordering Getz to 

pay monthly child support of $155.00 per month per child 

until each child attains the age of majority or is otherwise 

emancipated. With regard to the child support, the District 

Court further ordered that Getz make retroactive payment for 

the months August, 1982, through April, 1985, with future 

payments beginning on May 1, 1985. We affirm. 

The parties to this action began cohabitation in March, 

1977. They lived in the same household, except for brief 

separations, until August, 1982. During this cohabitation 

there was born as issue the two minor children named above. 

At no time during the period of cohabitation was there 

any holding out to the public that the parties considered 

themselves to be husband and wife and the District Court 

concluded that the parties were not and had never been 

married. 

In awarding custody of the children to Di Pasquale, the 

District Court found that the minor children had been in the 

custody of Di Pasquale since the parties' separation, that Di 

Pasquale was a fit and proper parent to have custody of the 

children and that the children were well-behaved and 

emotionally well adjusted to their home environment. 
The District Court also found, after considering that 

Getzls earning capacity was $25,000.00 per annum after 

deductions of Federal and State income tax and socialsecurity taxes, that Di Pasquale was entitled to monthly 

child support payments in the sum of $155.00 per month per 

child. 

Getz raises two issues on appeal: 

1. Does the District Court have issue jurisdiction to 

award retroactive child support which is neither alleged or 

prayed for in the pleadings nor supported by evidence heard 

at the time of trial? 

2. Is the award of custody to Di Pasquale in the best 

interest of the children? 

Di Pasquale raises one issue on cross-appeal: 

1. Did the District Court commit reversible error in 

determining Getzls child support obligation? 

With regard to the first issue raised by Getz, we hold 

that the District Court properly awarded Di Pasquale 

retroactive child support from August, 1982, through April, 

1985. In reviewing an award of child support, this Court's 

task is to examine the final child support award to determine 

whether an abuse of discretion by the District Court has 

occurred. Brown v. Brown (1978), 179 Mont. 417, 587 P.2d 

361. If there is no clear abuse of discretion resulting in 

substantial injustice, the award made by the District Court 

will not be disturbed. Grenfell v. Grenfell (1979), 182 

Mont. 229, 596 P.2d 205. 

Getz contends that the District Court had no issue 

jurisdiction to award retroactive child support because Di 

Pasquale did not pray for it in her original petition or her 

amended petition. Getz further contends that no evidence was 
introduced at trial which showed a desire on the part of Di 

Pasquale for retroactive child support. 

The record indicates that in Di Pasquale's original 

petition, she prayed for child support of $200.00 per month 

per child and in her amended petition she prayed for $250.00 

per month per child. Getz answered by means of a denial and 

a request for joint custody of the children. 

With regard to issue jurisdiction, this Court has stated 

that a "judgment is conclusive only so far as it determines 

matters which by the pleadings are put in issue." Sloan v. 

Ryers (1908), 37 Mont. 503, 511., 97 P. 855, 857. Here, we 

hold that the pleadings properly placed the issue of child 

support before the District Court. Further, once the issue 

of child support is properly before the District Court 

pursuant to the parties' pleadings, or amend.ments thereto, 

the District Court has issue jurisdiction to award 

retroactive child support from the time of separation of the 

parties and is never limited to the child support pra-yed for 

or agreed to by the parties. In Re the Marriage of Crabtree 

(19821, 200 Mont. 178, 651 P.2d 29; Hill v. Hil.1 (1982), 197 

Mont. 451, 643 P.2d 582. Our holding here is further 

buttressed by Rule 54 (c) , M. R. Civ. P. which provides in part: 

"Except as to a party against whom a judgment is entered by 

default, every final judgment shall grant the relief to which 

the party in whose favor it is rendered is entitled, even if 

the party has not demanded such relief in his pleadings." 

The District Court did not abuse its discretion. 

Getz next raises the issue of whether the award of 

custody to Di Pasquale was in the best interest of the 

children. Getz contends that the District Court erred by 
failing to make specific findings as to each factor listed in 

S 40-4-212, MCA. Getz further contends that the District 

Court reached its result by applying the "tender years" 

doctrine. 

Section 40-4-212, MCA, provides: 

Best interest of child. The court shall determine 

custody in accordance with the best interest of the 

child. The court shall consider all relevant 

factors including: 

(I) the wishes of the child's parent or parents as 

to his custody; 

(2) the wishes of the child as to his custodian; 

(3 f the interaction and interrehtionship of the 

child with his parent or parents, his siblings, and 

any other person who may significantly affect the 

child's best interest; 

(4) the child's adjustment to hi.s home, school, 

and community; and 

(5) the mental and physical health of all 

in.dividuals involved. 

This Court has stated that in awarding custody, the 

District Court must consider the guidelines set forth in S 

40-4-212, MCA, although the Court need not make specific 

findings on each of the elements. In Re Custody of Ericka M. 

(Mont. 1984), 676 P.2d 231, 41 St.Rep. 267; Speer v. Speer 

(1982), 201 Mont. 418, 654 P.2d 1001. In the instant case, 

the District Court addressed the issue of custody in its 

amended finding of fact no. 4, which provides: 

4. The children are now in the custody of the 

Petitioner, Teri Di Pasquale, and have been ever 

since the parties' separation. The Petitioner is a 

fit and proper parent to have the custody of the 

children. The children are wel-1-behaved and 

emotionally well adjusted to their home environment 

with the Petitioner. 

A review of the entire record in this case demonstrates that 

the District Court heard sufficient testimony on each of the 

relevant factors to support its findings. We will not 
disturb the findings of the District Court, absent a clear 

abuse of discretion. Speer, 201 Mont. at 420, 654 P.2d at 

1003. We hold the District Court did not abuse its 

discretion in awarding custody of the minor children to Di 

Pasqua1.e. 

We also find Getz's contention that the District Court 

hased its custody award on the "tender years" doctrine which 

this Court expressly rejected in Markegard v. Markegard 

(Mont. 1980), 616 P.2d 323, 325, 37 St.Rep. 1539, 1541, is 

based wholly on conjecture. We therefore decline to address 

the issue further. 

Finally, Di Pasquale, on cross-appeal, challenges the 

sufficiency of the District Court's grant of child support. 

In amended finding of fact no. 10, the District Court 

addressed child support. The finding provides: 

Based upon his income, Respondent is able to pay to 

Petitioner child support pa.yments in the amount of 

One Hundred Fifty Five Dollars ($155.00) per month, 

per child.. . . 

As stated previously in this opinion, Di Pasquale must 

demonstrate a clear a.buse of discretion, resulting in 

substantial injustice before we will disturb the award mad-e 

by the District Court. 

Di Pasquale contends that the District Court abused its 

discret.ion in two respects: first, she claims the District 

Court made a mistake in determining her income, and second, 

she claims that the decreed support is so disproportionate to 

Getzts income as to be arbitrary. 

In amended finding of fact no. 9, the District Court 

found that Di Pasquale's income was $11,250.00 per year after 

taxes. The record, however, does indicate that Di Pasqualets 

annual income, after taxes was approximately $9,000.00. 
Section 40-4-204, MCA, lists as one of the factors the 

District Court must consider before ordering payment of child 

support: "the financial resources of the custodial parent." 

The intent of 5 40-4-212, MCA, is merely to indicate the 

factors which the District Court should consider in setting 

the amount of support to be paid. by either the mother or 

father or both. In this case we find that the District Court 

did not abuse its discretion even though it was mistaken as 

to Di Pasqualels income because after considering all of the 

relevant factors set forth in 5 40-4-212, MCA, the District 

Court awarded Di Pasquale $155.00 per month, per child for 

support "[biased upon his income" and not hers. 

Di Pasquale next contends that the District Court abused 

its discretion because the award of child support is 

disproportionate to his income. In support of her 

contention, Di Pasquale relies on Carlson v. Carlson (Mont. 

1984), 693 P.2d 496, 41 St.Rep. 2419, wherein this Court 

suggested an algebraic formula to assist District Courts in 

the computation of a child support award. We find no abuse 

of discretion here because the Carlson formula is just what 

we said it was in Carlson, a suggested guideline and nothing 

more. 

Getz urges this Court to remand this case on the issue 

of sufficiency of the amount of child support for further 

hearing based on change of circumstances. We can only assume 

that Getz believes there has been a change of circumstances 

that would somehow entitle him to reduction in child support. 

The proper procedure for such action, however, is a motion 

for modification of support pursuant to 9 40-4-208, MCA. 

We affirm the District Court. 
\ ,' \L.-;k &..kbh 44 /J /&& 

Justice ' d 

We Concur: